In analyzing the nature of and changes to immigration law within the United States, it is beneficial to study factors that may render an immigrant deportable. Legal residents, even permanent residents, have no protection from deportation if they break some pertinent laws. This article seeks to establish different categories of offenses that may lead to deportation and they include Crimes of moral turpitude, aggravated felonies, and other deportable crimes. You will learn what these terms refer to and whether there are any choices for people in the situation of deportation.
Crimes of Moral Turpitude: The Basics
Immigration law frequently uses the label “Crimes of moral turpitude” (CMTs), but fails to provide a clear definition of its meaning, despite its widespread use. Nevertheless, there are some guidelines from courts and the Department of State. CMTs generally include offenses that relate to fraud, theft, or intent to harm people or assets. These may include; embezzlement, theft, mugging, wife beating or attempt to murder her, and aggravated DUI.
The challenge with CMTs is that there are numerous examples, and it’s not always clear whether a specific offense falls under this category. Therefore, it’s advisable to consult with an immigration attorney who can assess whether a conviction qualifies as a CMT.
Post-Conviction Measures and Immigration Consequences
Some individuals may wonder whether they can mitigate the immigration consequences of a criminal conviction by taking post-conviction measures like expungement or sentence reduction. Unfortunately, immigration law doesn’t always align neatly with state criminal law.
A critical decision by Attorney General Barr in 2019 clarified that a state-court order modifying a conviction’s term of imprisonment will only affect immigration law if it’s based on a procedural or substantive defect in the underlying criminal proceeding. U.S. immigration law disregards orders based on reasons unrelated to the merits, such as rehabilitation or immigration hardship.
Petty Offense Exception: A Ray of Hope
Immigration law provides a potential escape from classifying a crime as a CMT: the “petty offense exception.” This exception applies if the crime’s penalty could never exceed one year of imprisonment, and the actual prison time served was less than six months.
Examples of petty offenses may include shoplifting, simple assault, or a DUI without additional aggravating factors. The specific offenses considered petty may vary depending on state laws.
When Can a Person Be Deported for a Crime of Moral Turpitude?
To face deportation for a CMT, two scenarios apply:
- Committing a CMT within the first five years after admission to the U.S.
- Committing two or more CMTs, not arising from a single criminal scheme, at any time after admission.
The “five-year rule” means that if an individual commits a CMT more than five years after their admission to the United States, they are not deportable. However, if multiple CMTs are committed, irrespective of when, deportation becomes a possibility.
Seeking Relief: The 212(h) Waiver
In certain circumstances, immigrants facing deportation for CMTs may be eligible for a 212(h) waiver, a form of legal forgiveness. To qualify, one must not pose a national security threat, not have committed an aggravated felony (if a green card holder), and have continuously lived in lawful status within the U.S. for at least seven years before the deportation proceedings.
For some, the 212(h) waiver may be obtainable if the crime was related to prostitution, occurred more than 15 years before applying for permanent residency, or falls under the Violence Against Women Act (VAWA) due to abuse by a U.S. citizen or permanent resident spouse or parent.
U.S. immigration authorities may grant a waiver if deporting an individual would cause extreme hardship to a family member who is a U.S. citizen or lawful permanent resident.
Understanding Aggravated Felonies
Aggravated felonies under immigration law encompass a wide range of offenses, many of which are serious crimes like murder, rape, drug trafficking, child pornography, and more. A conviction for an aggravated felony can have dire consequences, including almost certain deportation.
Notably, even a suspended sentence or partial imprisonment can trigger this classification. Immigration authorities aggressively pursue deportation for individuals convicted of aggravated felonies, making it difficult for them to avoid deportation unless they can demonstrate a likelihood of torture upon return to their home country.
Other Crimes That Can Lead to Deportation
The Immigration and Nationality Act, in Section 237, provides a comprehensive list of deportable offenses, in addition to Crimes of Moral Turpitude (CMTs) and aggravated felonies. This list includes drug crimes, illegal firearms possession, domestic violence, stalking, child abuse or neglect, human trafficking, terrorist activity, and more. While some of these offenses may overlap with CMTs or aggravated felonies, they are separately listed to prevent arguments over classification.
Seeking Legal Guidance
If you find yourself facing criminal charges as an immigrant, it’s crucial to consult both a criminal defense attorney and an experienced immigration attorney. Navigating the intricacies of immigration law, especially when criminal convictions are involved, requires expert guidance. Your future in the United States may depend on it.
In the United States, the path to permanent residency and citizenship can be complex, and even green card holders can face deportation if they run afoul of certain laws. Crimes of moral turpitude, aggravated felonies, and other deportable offenses are serious matters that demand careful consideration and expert legal counsel. Understanding the implications of these crimes and potential avenues for relief is essential for anyone navigating the intricacies of U.S. immigration law. If you or someone you know is facing immigration-related challenges, seeking legal guidance is paramount to secure the best possible outcome.